The FCC’s net neutrality and broadband Title II order came under broad attack Thursday from parties filing briefs supporting telco/cable challenges to the agency’s order (see 1507310042). A group of tech intervenors said the commission’s actions exceeded its statutory authority and shouldn’t be accorded deference by the U.S. Court of Appeals for the D.C. Circuit, which is reviewing the case (USTelecom v. FCC, No. 15-1063). Various others filed amicus briefs saying the FCC hadn't justified its net neutrality rules and broadband regulation under Title II of the 1934 Communications Act or Section 706 of the 1996 Telecom Act, had ignored fundamental market realities, and violated First Amendment speech rights.

Associations, ISPs and others urged the FCC Consumer and Government Affairs Bureau (CGB) to extend or make permanent the small-provider exemption to the updated transparency rules adopted in the 2015 net neutrality order, in comments posted Wednesday and Thursday in docket 14-28. Some of the filers told us that they are optimistic CGB will keep the exemption.

The FCC adopted two IP transition orders that appeared to track Chairman Tom Wheeler’s recommendations and industry officials’ prognostications (see 1507100050, 1508040061 and 1508050067). Commissioners Thursday voted 3-2 along party lines to approve an order to ensure competitors continue to have affordable access to wholesale broadband and voice services as incumbents migrate to IP-based services over fiber networks. It pleased competitive LECs while disappointing incumbent LECs. FCC members voted 5-0 to approve an order to require fixed providers to notify consumers about service changes and give them backup power options.

A federal court set the briefing schedule for Neustar's challenge to an FCC order that gave Telcordia the conditional rights to the next local number portability administrator (LNPA) contract (Neustar v. FCC, No. 15-1080). Under an order issued Wednesday by the U.S. Court of Appeals for the D.C. Circuit, Neustar's brief is due Sept. 14; the FCC's is due Oct. 14; the brief of intervenors CTIA and USTelecom in support of the FCC is due Oct. 29; Neustar's reply is due Nov. 12 and final briefs incorporating a deferred appendix are due Dec. 3. The court issued a notice saying oral argument typically will be scheduled at least 45 days after briefing is completed. Neustar had no comment; it had filed a motion May 7 asking the court for an expedited briefing schedule that resembled the one the court issued Wednesday, albeit almost three months later. In the meantime, the FCC filed a motion May 21 asking the court to dismiss Neustar's challenge as premature, or alternatively hold it in abeyance pending further regulatory actions, because the agency considered its order an interim step in the LNPA selection process. A court motions panel July 21 issued an order that rejected the FCC request to hold the case in abeyance and referred its dismissal motion to the panel that will consider the case on its merits (see 1507210039).

Net neutrality provisions prohibiting paid prioritization are the biggest threat to the future of a vibrant Internet, said Internet entrepreneur Daniel Berninger, who made one of the three challenges to the FCC February net neutrality order in cooperation with Alamo Broadband. “The main issue for me as an entrepreneur is I need paid prioritization to do my HD voice initiatives,” Berninger told us. “The problem here is the FCC is essentially banning all future uses of this notion of paid prioritization even though it has no notion what those uses might be.” For the IP transition to be a success, you need paid prioritization “hands down,” he said. It’s impossible for the Internet to replace traditional networks without paid prioritization, he said.

The National Association of State Utility Consumer Advocates became the fifth party to ask the FCC to extend the comment period on proposals to overhaul the Lifeline USF support program to cover broadband and restructure its administration. Initial comments are currently due Aug. 17, replies Sept. 17, NASUCA said in a motion posted Tuesday in docket 10-90 asking for an extension to Sept. 16 and Oct. 19, because the issues addressed in the NPRM are a "sea change for the Lifeline program" and "are extremely complex and vitally important" to telecom customers the group represents. "There are literally hundreds of questions covering nearly every conceivable aspect of designing a Lifeline program for broadband, and many of the issues also affect the Lifeline program for voice services," said NASUCA, saying many key staffers would be on pre-scheduled family vacations. Previously, CTIA, the ITTA, USTelecom and California Public Utilities Commission asked for 30-day extensions (see 1507310061 and 1508030067).

A federal court accepted the requests of parties to file amicus briefs supporting petitioners challenging the FCC net neutrality and broadband reclassification order. An order Tuesday of the U.S. Court of Appeals for the D.C. Circuit in USTelecom v. FCC, No. 15-1063, granted the motions of: (A) Richard Bennett, (B) the Business Roundtable, National Association of Manufacturers and U.S. Chamber of Commerce, (C) Center for Boundless Innovation in Technology, (D) Georgetown Center for Business and Public Policy, Georgetown University, (E) International Center for Law and Economics and Affiliated Scholars, (F) former FCC employee William Kirsch, (G) Mobile Future, (H) Multicultural Media, Telecom and Internet Council, (I) Phoenix Center, (J) Telecommunications Industry Association and (K) Christopher Yoo, a law professor at the University of Pennsylvania. The Competitive Enterprise Institute, ex-FCC Commissioner Harold Furchtgott-Roth and Washington Legal Foundation had filed notices of their intent to file amicus briefs; lawyers for the three said they didn't have to file motions because they received the consent of all the parties to the case. (For more on the arguments the parties plan to make in their briefs, see 1507130064, 1507140035, 1507150012, 1507210054 and 1507270045). The briefs of the amici and intervenors supporting petitioners are due Thursday. Tuesday's order also directed the court's clerk to file Kirsch's brief, which he submitted early to protect petitioner due process rights. Kirsch said the FCC arbitrarily and capriciously failed to address his comments in the net neutrality proceeding on international telecom. "The FCC is entitled to deference for a Title II Court-guided classification, but should be subject to a de novo review for a quasi-judicial standard in place of the rules based approach that should be required of a so-called expert agency," Kirsch's brief said. It addressed intervenors' standing to address harm from "gatekeepers" and petitioners' standing to address harm from the U.S. Trade Representative's decision ceding the country's telecom advantage in the World Trade Organization agreement on basic telecom to trading partners, including China.

The FCC likely will approve two tech transition orders Thursday targeting competition and consumers as telcos move from copper-based phone networks and services to IP-based broadband systems, people involved in the proceeding said this week. A draft order to ensure competitive LECs have access to “reasonably comparable” incumbent LEC wholesale replacement services could draw Republican dissent, while a draft order requiring providers to offer consumers back-up power options has a better chance of being approved 5-0, some telecom industry officials told us. “It seems like the draft orders do have some momentum,” one official said. Also on the agenda Thursday for the FCC’s monthly meeting is a notice of inquiry on broadband deployment and several wireless and spectrum auction items.

The California PUC asked the FCC for a 30-day extension to file comments on Lifeline USF overhaul proposals, adding to the joint call by three telco trade associations on Friday for such an extension (see 1507310061). The current deadlines are Aug. 17 for initial comments and Sept. 17 for replies, the CPUC said. The CPUC said in a filing posted Monday to docket 11-42 that it needed more time because it runs a Lifeline program that's more comprehensive than the FCC's, "and is accordingly, more complicated to manage." The CPUC also said it needed more time to write comments on the potential interplay between the federal and California Lifeline programs. CTIA, ITTA and USTelecom said an extension was warranted because of the complexity of the FCC proposals to cover broadband and restructure the program's administration, and because the initial comment deadline fell in the middle of the traditional summer vacation period.

Oral argument on challenges to the FCC net neutrality order is set for Dec. 4, the U.S. Court of Appeals for the D.C. Circuit said in a short order Monday. The composition of the three-judge panel will usually be revealed 30 days before oral argument, noted the order, and a separate order will be issued on time allocations in the case (USTelecom v. FCC, No. 15-1063).